Opinion
Record No. 1267-93-3
November 30, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(James W. Osborne, Assistant Attorney General, on briefs), for appellants.
(Lawrence L. Moise, III; Vinyard Moise, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Worker's Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Southwestern Virginia Mental Health Institute (employer) contends that the medical evidence does not support the commission's finding of a causal relationship between Geneva M. Miller's (claimant) industrial accidents of August 8, 1991 and February 29, 1992 and her torn right rotator cuff.
Employer did not appeal the commission's findings that claimant sustained work-related accidents on August 8, 1991 and February 29, 1992. Thus, causation is the only issue on appeal.
The evidence must be viewed in the light most favorable to claimant, the prevailing party before the commission. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"The actual determination of causation is a factual finding that will not be disturbed on appeal if there is credible evidence to support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989) (citing Code § 65.1-98). Moreover, "'[w]hen an injury sustained in an industrial accident accelerates or aggravates a preexisting condition, . . . disability resulting therefrom is compensable . . . .'" Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986) (quoting Ohio Valley Constr. Co. v. Jackson, 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985)).
Claimant testified that at the time of the August 8, 1991 accident she felt a distinct "pop" in her right shoulder which led to immediate pain in her shoulder joint. Betty Sessor, claimant's co-worker and a witness to the accident, heard claimant's shoulder pop, and saw her grab her shoulder and sit down in obvious pain. Claimant testified that the February 1992 accident caused her to suffer increased pain in her shoulder joint.
Prior to the August 8, 1991 accident, claimant had been treated for shoulder pain by orthopedic surgeon Dr. Larry G. Lipscomb. However, claimant testified that prior to August 8, 1991 her pain was located between the right shoulder and elbow not in the shoulder joint as it was after the August 8, 1991 incident. In a March 16, 1992 report, orthopedic surgeon Dr. Carey W. McKain noted that Dr. Lipscomb treated claimant's shoulder in late July 1991, after which she was free of shoulder pain up until August 8, 1991. Dr. McKain also noted that claimant's pain was more significant after August 8, 1991 than that which she had previously experienced.
In a September 15, 1992 letter to claimant's attorney, Dr. McKain opined that claimant's shoulder condition "certainly seem[ed] to be related to her on-the-job incident" of August 8, 1991. In rendering his opinion, Dr. McKain was aware of the treatment rendered by Dr. Lipscomb for claimant's shoulder pain prior to August 8, 1991. He also knew that, upon treatment of claimant's shoulder, her pain had subsided prior to August 8, 1991.
In holding that claimant met her burden of proving a causal connection, the commission found that she suffered from a preexisting condition which was at least exacerbated, if not caused, by the accidents. The commission's determination as to causation is binding upon us. It is supported by the testimony of claimant, her co-workers, and the opinion of Dr. McKain. In addition, Dr. Lipscomb admitted in deposition testimony that claimant's witnesses' testimony established that claimant sustained an acute exacerbation of significant right shoulder pain which would be compatible with a rotator cuff tear. Dr. Lipscomb further stated that if claimant had reported the August 8, 1991 incident to him soon after it occurred, he would have opined that she sustained an aggravation of a pre-existing condition. The evidence establishes that the industrial accidents of August 8, 1991 and February 29, 1992, and resulting injury, either exacerbated claimant's shoulder symptoms or caused them, resulting in her disability. In either event, the disability is compensable.
Because the commission's decision is supported by competent, credible evidence, its determination will not be disturbed on appeal.
For the reasons stated, we affirm the commission's decision. Affirmed.
We need not address employer's motion filed with its reply brief, in that the May 6, 1992 cover letter and Dr. McKain's April 27, 1992 letter and off work slip were not relied upon by the commission in making its decision nor did we consider them on appeal.